Council which settled abuse claim secures order requiring foster parents to pay contribution

A local authority which paid more than £525,000 in damages and costs to settle an abuse claim has secured a High Court order requiring the foster parents to make a contribution – but for less than 5% of the amount the council was seeking.

The case of SS v Essex County Council & Ors [2023] EWHC 417 (KB) concerned a Part 20 claim brought by the local authority against the Part 20 Defendants "FF" and "FM" who between 1981 and 1998 were the foster parents of "SS" and later her carers until she was removed from their home in 2009.

Essex (ECC) sought an indemnity or alternatively a contribution from FF and FM for compensation it paid to SS in the principal claim. Within that principal claim, SS had alleged that she had been physically and sexually abused, starved, neglected and falsely imprisoned by FF and FM. She sought £7m overall.

The county council admitted both negligence and vicarious liability in the principal claim and in October 2022, the court approved the £325,000 settlement in favour of SS. The local authority also paid £200,000 as an interim payment towards costs.

Having paid that sum to SS, Essex submitted that FF and FM were responsible for "the same damage" and thus liable under the Civil Liability (Contribution) Act 1978 (the 1978 Act). It sought £525,000 from FF and FM.

Matthew Butt KC, sitting as a Deputy High Court judge, noted that SS's "schedule of abusive and neglectful experiences" alleged far more against FF and FM than the matters Essex stated it would prove within its skeleton argument. He also noted that the schedule served by SS alleged sexual and physical abuse over many years.

Steven Ford KC, who represented Essex in the Part 20 claim, asked the judge to find:

(1) SS was deprived of adequate and or reasonably nutritious food for up to three years prior to her removal by the police;

(2) food deprivation probably began rather earlier;

(3) SS suffered significant emotional abuse and neglect.

The judge’s note of Mr Ford’s closing submissions was: "SS was very seriously neglected having been kept in truly appalling conditions which included a filthy house that smelt of urine due to her being required to use a chemical toilet. She was confined to two small rooms at the back of the house behind a screen that she would not have been able to open. These were the conditions that she was said to have been kept in during the night, for half of her waking hours and when FF and FM were not in the house. The arrangement appears to have been in place for over 10 years (though ECC accepts that the circumstances were not in their 2009 state in 2003)."

The judge said it was notable that at the close of evidence, ECC no longer sought a finding that SS was physically assaulted by FF and/or FM nor that the tort of false imprisonment was made out, the latter point was not conceded but it was said to be part and parcel of the neglect advanced.

FF and FM, who represented themselves throughout the Part 20 proceedings, both denied that there was any abuse or neglect of SS. They said that this was "a good placement".

Reviewing all of the evidence, the judge said it was common ground that some of the matters in the claimant's particulars of claim were incapable of being proved. “In particular ECC did not seek to prove that SS was sexually abused when she was in foster care. This is a significant part of the claim brought by SS.”

He also said:

• He did not find that SS was physically assaulted by FF and or FM when she was in their care. “There is insufficient evidence to support such a conclusion and Mr Ford did not ultimately seek to persuade me that any such assaults occurred in his oral or written closing.”
• SS was severely malnourished when the police attended in May 2009. FF and FM owed SS a duty of care (they were her carers) and that this was breached by failing to provide her with sufficiently nutritious food over a period of time. He was satisfied that the period of malnutrition lasted for at least 18 months.
• He did not find that SS was emotionally abused by FF and FM. The primary evidence relied upon in this regard was that of the echolalic outbursts which FF and FM accepted in evidence occurred (though primarily at school rather than at home). “I am not able to conclude on a balance of probabilities that the disturbing phrases repeated by SS were things said to her by FF and FM by way of threats or emotional abuse.” The judge accepted that these were phrases SS could have heard at school, from children (including those in the FF/FM family home) or on residential trips. They could also have related to things she heard in her early childhood.
• The trial bundle contained a number of concerns expressed by social services about the care provided by FF and FM and their conduct more generally between (in particular) 1982 and 1998. “There is reference to a rigid routine in the family home and instances of FF and FM using inappropriate discipline (though importantly not towards SS). Having heard from FF and FM, however, I am not satisfied that they emotionally abused SS. I accept their evidence in this regard.”
• As to the invited finding that SS was very seriously neglected due to the appalling conditions at home, he had to ascertain what reliable evidence there was of conditions within the home over the course of SS's residence with FF and FM to determine the extent of any neglect and how long it lasted for. “A clear picture emerges from the records of the house being routinely dirty and of long standing concerns about FM's drinking. There is a smaller quantity of material which contradicts this and is supportive of FF and FM…. The evidence shows that the house was in an appalling state on 14/05/2019 and in particular SS's rooms smelt terrible due to the use of the chemical toilet which had not been emptied. I am also satisfied that the level of personal care taken of SS was very poor. She was unwashed, wearing filthy clothes and had lice. The house was very dirty and in particular the rooms used by SS had not been cleaned for some time.”
• It could not be an answer to this level of neglect for FF and FM to say that FM and SS had been unwell for a week or two. “If SS's carers were unable to look after her due to a period of illness, they could have requested help from ECC. They did not do so.” It was unreasonable to suppose the house could have deteriorated to such an extent in that time period or that SS would have picked up an infestation of lice during a short period of illness.
• It was clear that standards were deficient within the FF and FM house for some time and FF and FM neglected SS's basic needs. As her carers, FF and FM were therefore negligent in that they failed to: provide SS with an acceptable living environment within the house and within her bedroom and day room; and ensure that SS's personal hygiene was attended to.
• It was reasonable in all of the circumstances to conclude that the neglect of SS lasted for the same period of time as the malnutrition, namely at least 18 months. The judge inferred that if SS was not being properly fed for that period then it was reasonable to conclude that she was being neglected in other ways.
• In the circumstances and given SS's very significant needs, he did not consider that the use of a screen/barrier alone would have amounted to false imprisonment. It was used to keep SS safe and was a poor but effective mechanism of doing so. The judge did not find that SS was secured behind the screen for significant periods during the daytime.
• The use of the screen and a chemical toilet however would have made it especially important to ensure that the room was regularly cleaned and SS was properly looked after and washed. “That certainly was not the case on 14/05/2009 or on my findings for 18 months beforehand.”
• As to how this happened he found that it was due to inadequacy on the part of FF and FM. “This resulted from a combination of their age (though they would have only been in their late 50s at the time), SS's very challenging needs, FM's drinking (which I find was problematic and interfered with her ability to care for SS) and to a lesser extent the fixed opinion of both carers that they knew what was best for SS and were able to care for her despite the conditions at the family home.” The judge did not find that this was a form of punishment nor that this was "torture" or similar as set out in the Claimant's pleadings.

The judge said that as he had found that FF and FM were responsible for the neglect and malnutrition in the manner he had set out, it followed that they were liable to ECC for this damage.

Judge Butt added that in the unusual circumstances of the case, he had decided that the only just course was to value the damage for which FF and FM were liable. “It would be wrong to exempt FF and FM from making a contribution even if the sum in question is much lower than that which ECC sought to recover in this trial.”

The Deputy High Court judge said it was unfortunate that he had not had assistance from either party in this regard (as ECC declined to do so on principle and as FF and FM were unrepresented).

Taking the two areas of malnutrition and neglect together he valued the damages for pain and suffering caused at £14,000.

The judge agreed with Essex that a contribution should also be made towards the costs paid to SS. He assessed that this should £10,000.

He therefore concluded that FF and FM were liable for a contribution in the sum of £24,000.

Turning to the costs of the Part 20 claim, the judge said that, despite the low level or recovery, he accepted Mr Ford's submission that ECC was the successful party and the general rule therefore applied.

“I note that there was no Part 36 offer from FF and FM and so I cannot make a different order upon this basis. Whilst I note that FF and FM are litigants in person who would not be aware of the consequences of Part 36, they did not accept any fault in this claim and the only way that ECC was able to prove liability was by taking the case to trial,” he added.

However, Judge Butt said ECC had not won on many of the important issues in the claim including:

1. the (abandoned) argument that ECC did not need to prove liability
2. the (broadly abandoned) allegation of physical assaults
3. the duration of starvation
4. emotional abuse
5. the duration and extent of neglect, and
6. recovery of damage that was not proved in this Part 20 claim and/or compensation for risk.

“The level of damages whilst not notional is very significantly lower than that which ECC sought. In my judgment the appropriate course is to vary the normal order by ordering that the Part 20 Defendants pay a proportion of the Claimant's costs. In all of the circumstances and given the number of issues upon which ECC did not succeed and the low recovery in this case ECC is entitled to 33% of its costs to be assessed on the standard basis.”